Opinion
December 5, 1949.
Decree of the Surrogate's Court of Queens County, entered after trial without a jury, denying probate to a paper writing dated October 24, 1945, as the decedent's last will and testament, on the grounds that decedent lacked testamentary capacity, and that the paper writing had been procured by fraud and undue influence, insofar as appealed from, reversed on the law and the facts, with costs to appellants, payable out of the estate of Julia Swing, also known as Julia A. Swing, and the matter remitted to the Surrogate's Court with direction to enter a decree admitting such paper writing to probate as the last will and testament of the decedent. The findings of lack of competency and procurement of execution of the will by fraud and undue influence are reversed, and it is found that decedent was competent to make a will, which was executed without exercise upon her of fraud or undue influence. There was no proof at all of the exercise of fraud or undue influence. The proof was insufficient to present a triable issue as to lack of testamentary capacity. From the testimony of numerous disinterested witnesses, inclusive of a neurologist who made a professional examination, a doctor in attendance upon the decedent, business visitors and neighbors, a friend, and a visiting nurse who daily attended the decedent, it appears that she was competent. Her physician and the neurologist were the attesting witnesses. The will was prepared and duly executed only after a searching inquiry by an attorney, which inquiry was reduced to writing by an attending stenographer in the presence of the doctors, and it shows that decedent clearly appreciated the nature and extent of her estate, the making of a prior will and the natural prospective objects of her bounty. The beneficiaries of the will are the two aged sisters of decedent, her nearest surviving next of kin. In the light of this showing, the testimony for contestants, of two interested witnesses and a physician, contradictory in part, relating to a remote period, fails to create a triable issue. None of the contestants' witnesses had even seen decedent for over a year and a half prior to the making of the will, save for an isolated visit by one of the interested witnesses more than a year prior thereto. Nolan, P.J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.